State ex rel. Office of Public Counsel, Relator, v. Public Service Commission of the State of Missouri, et al., Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State ex rel. Office of Public Counsel, Relator, v. Public Service Commission of the State of Missouri, et al., Respondents. Case Number: SC89176 Handdown Date: 10/14/2008 Appeal From: Original Proceeding in Mandamus Counsel for Appellant: Lewis R. Mills, Jr., Michael F. Dandino and Christina Baker Counsel for Respondent: Kevin A. Thompson, Dennis Frey, Jennifer Heintz, Peggy A. Whipple, Diana C. Carter, James C. Swearengen, Dean L. Cooper, Russell L. Mitten, Janet Wheeler, James M. Fischer, Curtis D. Blanc, William G. Riggins and Shelley A. Woods Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. Overview: The Supreme Court of Missouri previously ordered the Missouri Public Service Commission to vacate an order purporting to increase rates for an electric utility. In response, the commission not only vacated its previous order but also attempted to determine the effect on moneys collected under the previous order. In a 6-0 decision that cannot be attributed to any particular judge, the Supreme Court holds that this attempt exceeded this Court's mandate and directs the commission to comply completely with the previous opinion and mandate. Facts: Following a challenge by the public counsel to a rate increase for the Empire District Electric Company, this Court directed the Public Service Commission to vacate an order it had entered December 29, 2006, purporting to approve the rate increase to be effective three days later. Public Counsel v. Public Service Com'n, 236 S.W.3d 632 (Mo. banc 2007). The commission subsequently entered an order vacating its previous order but again approving the tariffs it previously had approved in that December 2006 order. The commission further declared that if Empire charged the rates

as approved in the December 2006 order, then Empire charged the correct rates, which the commission said remain "in effect at the time" until the order is vacated. The public counsel contests this rate increase as well. WRIT MADE PERMANENT. Court en banc holds: By attempting to determine the effect on those moneys collected under the tariffs it previously had approved, the commission exceeded this Court's mandate. All it had authority to do was to vacate the December 2006 order, which restores the previously existing status, such that the situation is the same as though the order never had been made, leaving open for future determination all matters in controversy. The commission is directed to comply completely with this Court's previous mandate and opinion. This Court takes no position on the effect this action has on any tariffs the commission has approved. Citation: Opinion Author: PER CURIAM Opinion Vote: WRIT MADE PERMANENT. Stith, C.J., Price, Teitelman, Russell, Wolff and Breckenridge, JJ., concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. This proceeding is the second action filed by the public counsel to contest a rate increase sought by the Empire District Electric Company. As with the first action, the public service commission again is directed to vacate its order. Facts The public service commission first purported to approve an increase for Empire Electric on December 29, 2006, to be effective January 1, 2007. The public counsel sought a writ of mandamus. This Court noted that the law specifies 30 days for applying for rehearing but allows the commission the discretion to set a shorter time as long as the time is reasonable. The Court concluded that by issuing the December 29 order with an effective date of January 1, 2007, the commission abused its discretion to provide public counsel with a reasonable period of time in which to appeal the order. The Court ordered the commission "to vacate its order granting expedited treatment and approving tariffs issued on

December 29, 2006, and allow public counsel reasonable time to prepare and file an application for rehearing on the tariffs." Public Counsel v. Public Service Com'n, 236 S.W.3d 632, 637 (Mo. banc 2007). In response, the commission entered an order on December 4, 2007, stating that it vacated its previous order of December 29, 2006, but also again approving the tariffs it previously approved in its December 29, 2006, order. The commission also declared that "if Empire charged the rates as approved in the December 29, 2007, [sic] order, it charged the correct rates. And further, those rates remain 'in effect at the time' until the order is vacated." Discussion The parties essentially agree that the disposition of the moneys collected by Empire during the pendency of this action is not an issue for this Court at this time. All that is disputed is whether the commission, in fact, vacated its December 2006 order as directed by this Court. The commission did not. The general rule is that when an order or judgment is vacated, the previously existing status is restored and the situation is the same as though the order or judgment had never been made. The matters in controversy are left open for future determination. Buchanan v. Cabiness, 245 S.W.2d 868, 873 (Mo. banc 1951). In this case, the commission sought to do more than restore the existing status but also to determine the effect on those moneys collected under the tariffs the commission had previously approved. Such action exceeds this Court's mandate. The Court makes the alternative writ of mandamus issued in this case permanent. The commission is directed to comply completely with this Court's previous mandate and opinion. The Court takes no position on the effect such action has on any tariffs the commission has approved. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.